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Mohinder Pal v. Smt. Krishna Wati & Ors. - CR-2415-2006 [2006] RD-P&H 2989 (8 May 2006)

Civil Revision No.2415 of 2006 - 1 -


Civil Revision No.2415 of 2006

Date of decision: May 05, 2006.

Mohinder Pal



Smt. Krishna Wati & Ors.


Present: Shri Pankaj Gupta, Advocate for the petitioner.

Shri K.S. Rekhy, Advocate for the caveator-respondents.

Surya Kant, J. (Oral)

This revision petition is preferred by the tenant against whom an order of ejectment has been passed by the courts below on more than one grounds, including sub-letting.

As per the respondent-landlord's case, their predecessor-in- interest Des Raj let out the disputed premises to Harbans Lal (since dead), who was impleaded as respondent No.1. The premises was rented out for the purpose of lakri tall (fire-wood depot) on a monthly rent of Rs.20/- w.e.f. 1.1.1961. After the death of the original landlord, namely, Des Raj, on 17.4.1974 and in terms of a family settlement dated 22.9.1988, the demised premises fell to the share of respondents in equal shares. The ejectment of Harbans Lal as well as the petitioner (impleaded as respondent No.2) was sought on the ground that no rent was paid w.e.f. 1.4.1985; the original tenant has transferred his rights under the lease and sub-let the Civil Revision No.2415 of 2006 - 2 -

entire premises to respondent No.2 (petitioner herein) who is in actual possession thereof; the user of the premises has been changed in such a manner that it has materially impaired its value and utility; the petitioner herein had built a pucca shed to which he had no right; the premises was required by respondent No.1 for his own use as he was not occupying any such like premises in the urban area concerned; respondent No.1 intended to set up a handloom factory for his own use.

Upon issuance of notice to Harbans Lal (since dead), he appeared and tendered the rent on 21.10.1989. Soon thereafter, he is stated to have died on 3.11.1989. His legal representatives were duly served but they did not appear and were proceeded against exparte. The petitioner, i.e., respondent No.2 in the ejectment petition, however, resisted the claim of the respondent-landlords.

Strangely, the petitioner took up the plea that there was no relationship of landlord and tenant between the parties; the Rent Controller had no jurisdiction to try the ejectment petition; Harbans Lal (since dead), who was his real brother, occupied the premises for about 8-9 years and thereafter shifted the same to a khokha (kiosk) take on lease/licence from the Municipal Corporation; as the disputed premises was lying 'vacant' and 'abandoned', he 'occupied' the same and raised construction thereon to the knowledge of the respondents; he is in continuous, open, uninterrupted and hostile possession of the subject property since the year 1969-70 and has, thus, become its owner by adverse possession.

The Rent Controller as well as the learned first appellate authority, on a consideration of the evidence on record, have concurred that the premises was rented out by the predecessor-in-interest of the Civil Revision No.2415 of 2006 - 3 -

respondents to Harbans Lal and rent note dated 26.1.1961, Ex.AW2/1 was duly executed. The premises was rented out for a rent of Rs.20/- per month and that its possession was later on handed over by said Harbans Lal to his younger brother, namely, the petitioner herein. The fact that Harbans Lal used to pay rent to the landlord was also proved from the acknowledgment, Ex.AW4/1 which is on the back side of the rent note. In addition, relying upon the municipal records pertaining to the house tax, Ex.AW7/1, copies of the tax assessment for the year 1987-88, Ex.AW7/3 and 1993-94, Ex.AW4/2, coupled with another document, namely, application Form Ex.AW5/1 in which the petitioner Mohinder Pal has shown himself to be a tenant for the purpose of getting electric connection, assessment form Ex.AW7/4 and receipt Ex.AW7/5 as well as the deposit receipt Ex.AW7/6, the courts below have concluded that there is a plethora of documentary evidence including the petitioner's own admission that the premises in question was originally rented out to Harbans Lal who later on handed over the possession thereof to the petitioner.

The courts below have also found that Harbans Lal used to collect Rs.100/- per month as rent from the petitioner. It has, thus, been held that the original tenant has sub-let the premises to the petitioner.

On a perusal of the judgments under appeal, it is further apparent that in order to substantiate his plea of adverse possession, the petitioner, apart from harping upon his oral and bald statement, also set up a case that Harbans Lal's possession came to an end in the year 1966-67 and thereafter since the demised premises was lying vacant, he took possession thereof.

I have heard Shri Pankaj Gupta, Learned Counsel for the Civil Revision No.2415 of 2006 - 4 -

petitioner, and Shri K.S. Rekhy, learned Counsel for the caveator- respondent.

Learned Counsel for the petitioner has made two-fold submissions. Firstly, it is argued that, while returning a finding that Harbans Lal was tenant and/or the premises was sub-let to the petitioner, the courts below have misread the evidence on record. It is contended that no date of sub-letting was mentioned in the ejectment petition and only a vague averment was made. According to the learned counsel, the respondent- landlords themselves have admitted the petitioner as a tenant in one of the suit which they had jointly filed against the Improvement Trust. Secondly, it is contended that the petition has been filed in collusion with the petitioner's brother Harbans Lal (since dead) with whom the petitioner was having strained relations. Learned counsel contends that after tendering the rent on the first date of appearance, Harbans Lal did not contest the petition and his legal representatives were also proceeded against exparte.

However, they were brought into picture subsequently by the respondent- landlords inasmuch Ashok Kumar, son of deceased Harbans Lal, moved an application for setting aside the exparte proceedings against them and upon setting aside the same, he filed the written statement admitting the claim of the landlords.

After thoughtful consideration of both the contentions, I do not find any merit in the same. There is an overwhelming documentary evidence produced on record which conclusively establishes that the demised premises was rented out to Harbans Lal with effect from 1.1.1961 vide rent note dated 26.1.1961, Ex.AW2/1. Harbans Lal remained in possession for a sufficiently long period till he surrendered the same Civil Revision No.2415 of 2006 - 5 -

exclusively in favour of his own brother, namely, the petitioner herein.

Upon receipt of the notice in the ejectment petition, Harbans Lal appeared along with the petitioner on 21.10.1989 and tendered the arrears of rent though this fact was disputed by the petitioner before the first appellate authority. However, as discussed in detail by the first appallate authority, it stands proved that the petitioner and Harbans Lal engaged a common counsel to represent them before the Rent Controller.

No evidence, whatsoever, has been led by the petitioner in support of his plea of adverse possession. On the contrary, the respondent- landlords have produced documents, exhibited as AW5/1, AW7/4, AW7/5, AW7/6 in which the petitioner has admitted himself to be a tenant in the premises. His plea of adverse possession is, thus, falsified by his own conduct.

The fact that Harbans Lal was inducted as a tenant and at a later stage the petitioner came to occupy the premises, proves beyond doubt that the possession thereof was handed over to the petitioner by none else than his own brother. The petitioner's entry into the premises is, thus, neither hostile to the title nor rights of the respondent-landlords. In any case, none of the ingredients of an adverse possession have been proved by the petitioner.

Consequently, I do not find any merit in the petition which is accordingly dismissed.

May 05, 2006. [ Surya Kant ]

kadyan Judge


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